Horta v. Sullivan ( 1994 )

USCA1 Opinion

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 92-1962

                                     DEBRA HORTA,

                                Plaintiff, Appellant,

                                          v.

                             CHARLES B. SULLIVAN, ET AL.,

                                Defendants, Appellees.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. A. David Mazzone, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                Torruella, Chief Judge,
                                           ___________

                           Campbell, Senior Circuit Judge,
                                     ____________________

                              and Stahl, Circuit Judge.
                                         _____________

                                 ____________________

            Sheila M.  Tierney with whom Tierney  Law Office was  on brief for
            __________________           ___________________
        appellant.
            Linda M. Walsh with whom Kroll & Tract  was on brief for appellees
            ______________           _____________
        Charles B. Sullivan,  Paul G.  Sadeck, Edward  Mello and  the Town  of
        Freetown.
            James  F. Gettens with whom  Healy & Rocheleau,  P.C. was on brief
            _________________            ________________________
        for  appellees Jeffrey  Mennino,  James K.  Bowles,  and the  Town  of
        Lakeville. 
                                 ____________________

                                  September 29, 1994
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                      CAMPBELL, Senior  Circuit  Judge.   In our  earlier
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            disposition  of  this  appeal1,  we disposed  of  all  claims

            except appellant's claim against  the town of Lakeville under

            the  Massachusetts Tort  Claims Act,  Mass. Gen.  L. ch.  258

            (Count  IV).   We  retained appellate  jurisdiction over  the

            latter  claim  against Lakeville  pending  an  answer to  the

            following question, which  we certified to the  Massachusetts

            Supreme Judicial Court pursuant to its Rule 1:03:

                 Do the discretionary decisions of a police  officer
                 to begin  and continue the high-speed  pursuit of a
                 vehicle then  being operated  in  violation of  law
                 involve  policymaking or  planning for  purposes of
                 immunity under Massachusetts General Law ch. 258,  
                 10(b)?

                      The  Massachusetts  court  has  now  answered  that

            question  in the negative.  Horta v. Sullivan, 418 Mass. 615,
                                        _____    ________

            615 (1994).  Accordingly, Mennino's actions were not entitled

            to immunity under   10(b),  and the district court's granting

            of summary judgment  on Count  IV in favor  of Lakeville  was

            improper.2   Horta v. Sullivan, 4 F.3d 2, 24 (1st Cir. 1993).
                         _____    ________

                                
            ____________________

            1.   Horta v. Sullivan, 4 F.3d 2 (1st Cir. 1993).
                          ________

            2.  Although  for other  reasons we  earlier vacated  summary
            judgment  on appellants'  claim  against Freetown  under  the
            Massachusetts Tort  Claims  Act, Horta,  4  F.3d at  25,  the
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            answer  of the  Massachusetts Supreme  Judicial Court  to our
            certified question  appears germane to that claim as well, as
            we  thought might be the  case.  Id.   Since that claim is no
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            longer before us, however, we do not address it at this time,
            but  leave to the parties  and the district  court any action
            that may be appropriate in light of the Massachusetts court's
            opinion.

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            We therefore vacate summary judgment on this claim and remand

            to the district court for further proceedings consistent with

            our  opinion  herein and  the  opinion  of the  Massachusetts

            Supreme Judicial Court.  We note that while our certification

            was  pending  before  the   Massachusetts  high  court,   the

            Massachusetts  state  legislature  amended the  Massachusetts

            Tort Claims Act.   See  Act approved January  14, 1994,  1993
                               ___

            Mass.  Legis. Serv. ch. 495,     57, 144  (H.B. 5620) (West).

            The  Supreme  Judicial  Court  did  not  rule  on  how  these

            amendments might affect Horta's  claim, if at all,  since the

            issue was not before it.   See Horta, 418 Mass. at  622 n.14.
                                       ___ _____

            We similarly do not reach this issue, but anticipate that the

            district court, if  called on to do so by one  or more of the

            parties, will rule on the  materiality of these amendments to

            the pending  claim and will  factor the  amendments into  its

            final outcome if and to the extent appropriate.

                      Count IV is vacated and remanded.
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